Item 6. Indemnification of Directors and Officers
Article XIV of the Registrant’s Articles of Amendment and Restatement to the Articles of Incorporation and Article 8 of
Registrant’s Amended and Restated Bylaws and in accordance with Section 16-10a-901 et seq. of the Utah Revised Business Corporation Act, provide that Registrant may, to the fullest extent and in the manner permitted by the Utah Revised Business
Corporation Act or any other law as now in effect or as it may hereafter be amended, indemnify a director or an officer made a party to a proceeding because such individual was a director or an officer of Registrant, against liability incurred in any
threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative and whether formal or informal, if the individual's conduct was in good faith, such individual reasonably believed that his or her
conduct was in, or not opposed to, the Registrant’s best interests, and, in the case of any criminal proceeding, the individual had no reasonable cause to believe such individual’s conduct was unlawful. The liability against which indemnification is
applicable is the liability incurred with respect to a proceeding to pay a judgment, settlement, penalty, fine (including an excise tax assessed with respect to an employee benefit plan), or reasonable expenses. The termination of a proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent is not, of itself, determinative that the individual's conduct was not in good faith, that the individual did not reasonably believe that such individual’s
conduct was in, or not opposed to, Registrant’s best interests or that, in the case of any criminal proceeding, the individual had reasonable cause to believe such individual’s conduct was unlawful. Registrant may also indemnify an officer who is
not a director, if not inconsistent with public policy, and if provided for by its Amended and Restated Articles of Incorporation, Amended and Restated Bylaws, or general or specific action of its Board of Directors, or contract.
Registrant may not indemnify a director or an officer unless authorized and a determination is made in the specific case that
indemnification of the individual is permissible in the circumstances because such individual’s conduct was in good faith, such individual reasonably believed that his or her conduct was in, or not opposed to Registrant’s best interests, and, in the
case of any criminal proceeding, the individual had no reasonable cause to believe such individual’s conduct was unlawful. Registrant may pay for or reimburse the reasonable expenses incurred by an individual who is a party to a proceeding in
advance of final disposition of the proceeding if (1) the individual furnishes Registrant a written affirmation of such individual’s good faith belief that his or her conduct was in good faith, that the individual reasonably believed that his or her
conduct was in, or not opposed to Registrant’s best interests, and, in the case of any criminal proceeding, the individual had no reasonable cause to believe such individual’s conduct was unlawful; and (2) the individual furnishes to Registrant a
written undertaking, executed personally or on such individual’s behalf, to repay the advance if it is ultimately determined that he or she did not meet the standard of conduct referenced in part (1) of this sentence. In addition to the individual
furnishing the aforementioned written affirmation and undertaking, for Registrant to advance expenses, the determination must also be made that the facts then known to those making the determination would not preclude indemnification.
All determinations relative to indemnification must be made as follows: (1) by the Board of Directors of Registrant by a
majority vote of those present at a meeting at which a quorum is present, and only those directors not parties to the proceeding shall be counted in satisfying the quorum; or (2) if a quorum cannot be obtained as contemplated in part (1) of this
sentence, by a majority vote of a committee of the Board of Directors designated by the Board of Directors of Registrant, which committee shall consist of two or more directors not parties to the proceeding, except that directors who are parties to
the proceeding may participate in the designation of directors for the committee; or (3) by special legal counsel selected by the Board of Directors or a committee of the Board of Directors in the manner prescribed in part (1) or (2) of this
sentence (however, if a quorum of the Board of Directors cannot be obtained under part (1) of this sentence and a committee cannot be designated under part (2) of this sentence then a special legal counsel shall be selected by a majority vote of the
full Board of Directors, in which selection directors who are parties to the proceeding may participate); or (4) by shareholders, by a majority of the votes entitled to be cast by holders of qualified shares present in person or by proxy at a
meeting.
Item 9. Undertakings
1. The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a post-effective amendment to
this Registration Statement.
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of this
Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective Registration Statement; and
(iii) To include any material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs (a)(i) and (a)(ii) shall not apply of the information required to be included in a post-effective
amendment by those paragraphs that is contained in periodic reports filed with or furnished to the Commission by Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference herein.
(b) That, for the purpose of determining any liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the offering.
2.
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this Registration Statement shall
be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
3.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.